Muhammed v. Muneer and Noushad A. and The Oriental Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 MACA NO. 2177 OF 2014`** ``` AGAINST THE AWARD DATED 01.03.2014 IN O.P(M.V) NO.1041/2013 OF PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE ``` ## **`APPELLANT/PETITIONER:`** ``` MUHAMMED, S/O.LATE ALAVI, AGED 55 YEARS, KOLANGOTT HOUSE, P.O.PALLIKKAL, AANOOR, MALAPPURAM-673 634. BY ADVS.SMT.DIVYA B.NAIR SMT.A.MUMTHAZ SRI.R.RETHEESH KUMAR ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1MUNEER, S/O.MOYINKUTTY, KATTUPPARUTHI HOUSE, NEETTANI, P.O.THURAKKAL, KONDOTTY, MALAPPURAM-673 638. 2NOUSHAD A., S/O. MOOSAKKUTTY, AGED 28 YEARS, PILAKALKUNDIL HOUSE, BLOCK ROAD, P.O.KONDOTTY, KOTTAYAM-673 638. 3THE ORIENTAL INSURANCE CO. LTD. D.O.I, SEEMA BUILDING, G.H.ROAD, OPP.KOTTAPARAMBA HOSPITAL, CALICUT-673 001. R3 BY SRI.K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.2177 of 2014 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 09[th] day of March, 2023** The appeal on hand is originated from an award passed by Principal Motor Accidents Claims Tribunal, Kozhikode (for short ‘the Tribunal’) on 01.03.2014 in O.P(M.V) No.1041/2013. The appellant is the petitioner before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 3. The petitioner met with a motor accident at about 7 a.m. on 14.03.2013. While he was standing at the margin of Kottapuram-Kakkanchery public road, an autorickshaw bearing Registration No.KL-10/AE-6260 knocked him down and thereby he sustained serious injuries. He was taken to Medical College Hospital, Kozhikode for treatment. He was treated as inpatient for 22 days. Alleging that the motor ``` M.A.C.A.No.2177 of 2014 ``` ``` 3 ``` accident was occurred due to the rash and negligent driving of the autorickshaw by its driver and claiming a sum of ₹15,02,000/-, as compensation the above Original Petition was filed before the Tribunal. 4. The respondents were served with notice from the Tribunal. 1[st] and 2[nd] respondents remained absent and were declared _ex parte_ . The 3[rd] respondent filed written statement admitting insurance coverage of the autorickshaw as on date of accident. It was contended that the 2[nd] respondent was not negligent in driving the same at the relevant time, that the motor accident was occurred due to the negligence on the part of the petitioner himself and that the compensation claimed is excessive and without any basis. The pleadings of the petitioner regarding the age, the occupation and the monthly income were also disputed. 5. Before the Tribunal Exts.A1 to A12 series were marked in evidence on the side of the petitioner. Either oral or documentary evidence was not adduced by the 3[rd] respondent. On the basis of the evidence on record the ``` M.A.C.A.No.2177 of 2014 ``` ``` 4 ``` Tribunal concluded that the motor accident in question was occurred due to the rash and negligent driving of the autorickshaw by its driver who was arrayed as the 2[nd] respondent in the Original Petition. The Tribunal found from the medical documents on record that the petitioner had sustained serious injuries in the motor accident and therefore, respondents 1 to 3 are jointly and severally liable to compensate him. The Tribunal arrived at ₹5,50,869/rounded off to ₹5,51,000/- as the compensation payable to the petitioner. 6. Furthermore, the Tribunal directed the insurer, who is none other than the 3[rd] respondent to deposit the compensation awarded with interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisaiton. The compensation was directed to be deposited within 30 days from the date of the award. Aggrieved by the quantum of compensation stands awarded, the petitioner before the Tribunal has approached this Court in the appeal on hand. ``` M.A.C.A.No.2177 of 2014 ``` ``` 5 ``` 7. Smt.Divya B Nair, the learned counsel for the petitioner contended that the Tribunal went wrong in fixing ₹5,000/- as the monthly income on a notional basis. According to her, the petitioner being a coolie worker, the monthly income ought to have been fixed by the Tribunal on the basis of the fixation in **Ramachandrappa v Manager,** **Royal Sundaram Alliance Insurance Company Limited** [ (2011) 13 SCC 236]. The learned counsel has further contended that the petitioner had sustained Type III open fracture of both bones of left leg and during the course of treatment at Medical College Hospital, Kozhikode his left leg was amputated below knee level. Pneumothorax was also developed and therefore, Tube thoracostomy was done. He got his permanent disability assessed through the District Medical Officer as 60%. 8. The contention secondly raised was that though the petitioner was hospitalised for 22 days, the Tribunal failed to consider that and took it as 15 days. According to the learned counsel, the petitioner was aged 55 years at the ``` M.A.C.A.No.2177 of 2014 ``` ``` 6 ``` relevant time of the motor accident and the multiplier applicable is ‘11’ whereas the Tribunal took only ‘9’. Accordingly modification of the compensation under various heads was canvassed. 9. The motor accident in the case on hand was occurred in the year 2013. Since the petitioner pleaded to be a Coolie worker by occupation and the accident being occurred in the year 2013, ₹9,000/- is fixed as his monthly income. The Tribunal calculated compensation for loss of earning for six months. In view of the amputation of the left leg of the petitioner, this Court modifies the period to one year. Thus ₹1,08,000/- (₹9,000/- x 12) is arrived at. Since the Tribunal has already awarded ₹30,000/- under that head, the petitioner will get ₹78,000/- as additional compensation. 10. The petitioner was residing at Malappuram and following the accident he had availed treatment from Medical College Hospital, Kozhikode. Therefore, this Court awards ₹10,000/as compensation towards transportation ``` M.A.C.A.No.2177 of 2014 ``` ``` 7 ``` expenses. ₹1,000/- stands already awarded by the tribunal when deducted, the petitioner will get ₹9,000/- as additional compensation. As compensation towards damages to clothing, ₹500/- more is awarded. As compensation towards extra nourishment and bystander expenses, excess sum of ₹5,500/- and ₹8,250/- respectively are awarded. 11. As compensation towards pain and suffering ₹30,000/- stands awarded by the Tribunal is modified to ₹1,00,000/- and therefore the petitioner will get ₹70,000/as additional compensation. As compensation towards loss of amenities and enjoyments in life, ₹50,000/- stands awarded by the Tribunal is modified to ₹80,000/- and therefore the petitioner will get ₹30,000/- as additional compensation. 12. This Court has modified the monthly income to ₹9,000/-. The left leg of the petitioner was amputated above knee level and therefore in consideration of loss of future prospects, 10% is added to the monthly income. Thus ``` M.A.C.A.No.2177 of 2014 ``` ``` 8 ``` ₹9,900/- (₹9,000/- + ₹900/-) is arrived at. In the reassessment of compensation for permanent disability with the above modified factors, ₹7,84,080/- ( ₹9,900 x 12 x 11 x 60/100) is arrived at. ₹3,24,000/- stands awarded by the Tribunal is deducted therefrom, the petitioner will get ₹4,60,080/- as additional compensation towards permanent disability. 13. In the above manner of reassessment, the petitioner will get ₹6,61,330/- (Rupees Six lakhs sixtyone thousand three hundred and thirty only) (₹70,000/- + ₹30,000/- + ₹5,500/- + ₹8,250/- + ₹500/- + ₹9,000/- + ₹78,000/- + ₹4,60,080/-) The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The Tribunal has fixed the liability upon the 3[rd] respondent to indemnify the insured. Challenge having not been raised against that by the 3[rd] respondent, the finding of the Tribunal is maintained. Accordingly the 3[rd] respondent is directed to deposit the additional compensation with interest fixed as ``` M.A.C.A.No.2177 of 2014 ``` ``` 9 ``` above within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** NAB